Cassation No. 15751/2025 and the Right to Defence in CPRs: Relatives Can Appoint a Lawyer

The ordinance of the First Criminal Section No. 15751 of April 22, 2025, addresses a highly topical issue: the judicial protection of foreigners detained in Retention Centres for Repatriation (CPR) following Decree-Law 145/2024, converted into Law 187/2024. The Court of Cassation, quashing with referral the decision of the Justice of the Peace of Trapani, recognizes the full legitimacy of the appointment of a defence lawyer by a close relative of the detained person. This is a step that strengthens the right to defence in proceedings characterized by extremely short appeal deadlines.

Reference Legislative Framework

The amended Article 14, paragraph 6, of Legislative Decree 286/1998 provides for a legality review before the Court of Cassation against the validations of administrative detention. Although the matter is formally "administrative," the legislator has modelled the procedure on criminal procedural principles, with very short deadlines for appeal. Hence the need to ensure effective access to defence even for those who, being de facto deprived of liberty, have difficulty conferring the mandate in person.

• Article 96, paragraph 3, of the Code of Criminal Procedure: allows the appointment of a defence lawyer by a relative for detained defendants.
• Article 14, paragraph 6, of Legislative Decree 286/1998: governs appeals to the Court of Cassation regarding detention.
• Decree-Law 145/2024 converted into Law 187/2024: has extended the duration of detention and judicial oversight powers.

The Cassation Court's Decision

In the matter of administrative detention of foreign persons under the procedural regime following Decree-Law of October 11, 2024, No. 145, converted, with amendments, by Law of December 9, 2024, No. 187, in the legality review proceedings held pursuant to the amended Article 14, paragraph 6, of Legislative Decree of July 25, 1998, No. 286, the defence appointment made by a close relative of the person detained in a repatriation centre is lawful, given the same substantial prerequisite – the state of personal liberty deprivation of the interested party – as the situations indicated by Article 96, paragraph 3, of the Code of Criminal Procedure, and considering the need to ensure the effectiveness of judicial protection within the strict appeal deadlines.

Comment: The Court analogously extends the institute provided for detained defendants to appeals in immigration matters, emphasizing that the restriction of personal liberty requires equivalent defence guarantees. The family appointment thus becomes an essential tool to prevent the shortness of time from rendering the judicial review of legality ineffective.

Referring to previous rulings Nos. 9556/2025 and 16140/2023, the Court of Cassation emphasizes the "substantially custodial" nature of the detention, which justifies the application of the same guarantees provided in criminal matters. The quashing with referral invites the lower court judge to re-examine the admissibility of the appeal, this time upholding the validity of the mandate issued by a family member.

Practical Implications for Lawyers and Families

The decision offers useful operational guidance:

• Families of detained foreign citizens can immediately grant special power of attorney to a defence lawyer, even without prior authorization from the detained person.
• Upon receiving the mandate, the lawyer must attach documentation proving the kinship and the detention status.
• Justices of the Peace and the Court of Cassation must evaluate appeals without raising formal nullities related to the origin of the appointment.

Looking ahead, the practice outlined by the ruling could impact the guarantees offered by Directive 2013/33/EU (reception of asylum seekers) and Articles 6 and 13 of the ECHR, which require an effective right to judicial remedy.

Conclusions

Ruling No. 15751/2025 marks a step forward in the protection of migrants' fundamental rights, incorporating the demands for effective defence coming from European jurisprudence. By extending the possibility of appointing a defence lawyer to family members, the Court of Cassation prevents the strict appeal deadlines from emptying the judicial review of detention of its substance. Legal professionals are called upon to leverage this development to ensure timely and qualified assistance to detained persons.